Can a Power of Attorney Give Away a Life Estate?

By John Cromwell

A power of attorney is a written document wherein a principal grants an agent the power to take action on the principal’s behalf. Powers of attorney are often granted because the principal wants to take a specific action but cannot do it personally for some reason. What an agent can and cannot do is defined in the power of attorney document. A power of attorney can grant an agent the ability to give away a life estate specifically or the right to distribute a principal’s property subject to whatever terms the agent sees fit. However, the power of attorney may limit the circumstances in which an agent can use his power.

Life Estate Defined

A life estate is a right to use and control real estate for the duration of a holder’s, or life tenant’s, life. A life tenant can use or rent the property, but must maintain it. Once the life tenant dies, the property automatically goes to another person, known as a “remainderman.” The life tenant cannot sell the property without the consent of the remainderman. A principal can only authorize the agent to do things the principal would be able to do. So if the principal has a life estate that he has authorized an agent to dispose of, the agent can only sell the right to use the property for as long as the principal lives, not the property itself.

Durable Power of Attorney

A durable power of attorney grants the agent the ability to act for the principal even if the principal is incapacitated. A traditional power of attorney would not allow an agent to act unless the principal was in a position to monitor his actions. If the agent does not have a durable power of attorney and his principal is incapacitated, he cannot convey a life estate.

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Fiduciary Duty

All agents owe their principals a fiduciary duty. That means while using the authority granted to them by their principals, agents cannot try to enrich themselves or do anything that would hurt their principal’s interests. This means that just because an agent is authorized to transfer a life estate doesn't mean he can do so; if transfer of the life estate would not be in the principal's best interests or against the agent’s fiduciary duty, he cannot do it.

Recovering Damages for Transaction

If your agent wrongfully transferred a life estate, you should immediately revoke his power of attorney. You can sue the agent for damages you incurred because of the transaction in civil court. You may also be able to press criminal charges, such as fraud or theft, depending on the severity of the case.

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Abuse of a Power of Attorney for an Incapacitated Family Member


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